Legal shorts for March 31, 2015: No 'right' to be forgotten; no protections for your mobile viewing history; and the impact of common-carrier ISPs

No such thing as a 'right to be forgotten'

Not long ago, a resident of Spain wanted Google to remove links to information related to his past financial troubles. The European court ruled that Google has to allow people to request similar removals of disparaging but accurate information. Now people are talking about extending this right to U.S. citizens.

To which I say "Phooey!"

First, Google merely removes links to the sources of information you want to erase from the Internet. The information's still there, and it could be discovered -- at least in theory -- via other methods.

But more importantly, you can't rewrite history. That was what Big Brother was doing in George Orwell's 1984, right? "If you control the past, you control the present." What gives you the right to attempt to control the past?

This sentiment was the consensus of attendees at a recent debate in New York City on whether the U.S. should follow the lead of the European Court of Justice in allowing individuals to demand negative (but accurate) information about them be removed from search results. Fortune's Jeff John Roberts reports on the event in a March 12, 2015, article.

The best defense against such disparaging information is to counter it with positive information. With time and effort, you'll reclaim your reputation. (Of course, if the disparaging information is untrue and damaging, you have a duty to seek reparations -- but not from Google. Look for your remedy from the source of the defaming information.)

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Web video service isn't liable for sharing customers' viewing history without permission

So this company sells a customer's 64-digit Android phone ID and video-viewing history without permission to a targeted ad network. Then the ad network ties the ID to information from another source to determine the customer's name. The customer claims this is a violation of the Video Privacy Protection Act of 1988, which was enacted in the wake of Judge Robert Bork's failed nomination to the U.S. Supreme Court. During Bork's nomination process, a newspaper acquired the nominee's rental history from a video store (remember those?)

The U.S. District Court dismissed the suit with prejudice for failure to state a claim. (Ellis v. The Cartoon Network, Inc., U.S. Dist. LEXIS 143078, at *9 (N.D. Ga. Oct. 8, 2014)). On March 2, 2015, defendant Cartoon Network filed its response brief requesting that the Eleventh Circuit Court of Appeals affirm the district court's dismissal, as Jessica Nwokacha writes in a March 25, 2015, post on the JD Supra Business Advisor site.

Mark Ellis, the plaintiff, points to the statute's interpretation of personally identifiable information as any where "the recipient of a disclosure understands to whom the information refers." Ellis points out that information such as the Android ID is actually more identifying than a name because names are often shared by several people, whereas an Android ID is unique to an individual.

Nwokacha states that our mobile viewing histories become more valuable as our use of mobile phones increases. Depending on outdated statutes such as the Video Privacy Protection Act to prevent misuse of our mobile data is tantamount to having no protections at all.

Treating ISPs as common carriers will broaden the definition of 'personal info'

Once Internet services are subject to the restrictions of common carriers under the Section 222 of the Telecommunications Act of 1996 (47 U.S.C. § 222), the Android ID at issue in Ellis v. The Cartoon Network may qualify as "customer proprietary network information" under Section 222. That would limit how services can use, disclose, and share such personal information, as Mark Brennan writes in a March 25, 2015, post on the Hogan Lovells site.

However, the FCC intends to give Internet services a pass on Section 222, claiming that the statute was intended for voice communications, so its definition of personal information doesn't apply to Internet services. The agency is expected to develop new rules applying Section 222 to information collected and stored on the Internet.